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the Constitution was agitated with equal ability and ardour in the executive cabinet. Mr. Jefferson, the Secretary of State, and Mr. Edmund Randolph, the Attorney-general, conceived that Congress had transcended its powers; but the Secretary of the Treasury maintained the opposite opinion, and was supported by General Knox, the Secretary of War. It was argued against the validity of the act, that “the power to incorporate a bank was not among the enumerated powers; and to take a single step beyond the boundaries specially drawn around the powers of Congress, would be to take possession : of an undefined and undefinable field of power; that, though Congress were authorized to make all laws necessary and proper for carrying into execution the enumerated powers, they were confined to those means which were necessary, and not merely convenient. It meant those means without which the grant of the power would be nugatory; and if such a latitude of construction were allowed as to give to Congress any implied powers on the ground of convenience, it would swallow up all the enumerated powers, and reduce the whole list to one phrase.”
To this it was replied, that “every power vested in a government was, in its nature, sovereign, and gave a right to employ all the means fairly applicable to the attainment of the end of the power, and not specially precluded by specified exceptions, nor contrary to the essential ends of political society; and though the government of the United States was one of limited and specified powers, it was sovereign with regard to its proper objects and declared purposes and trusts ; that it was incident to sovereign power to erect corpora
tions, and, consequently, it was incident to the government of the United States to erect one in relation to the objects intrusted to its management; that implied powers are as completely delegated as those which are expressed, and the power of erecting a corporation may as well be implied as any other instrument or means of carrying into execution any of the specified powers; that the exercise of the power in that case had a natural relation to the lawful ends of the government, and it was incident to the sovereign power to regulate the currency, and to employ all the means which apply with the best advantage to that regulation; that the word necessary in the Constitution ought not to be confined to those means without which the grant of the power would be nugatory; that it often means no more than needful, requisite, useful, or conducive to ; and that this was the sense in which the word was used in the Constitution. The relation between the measure and the end was the criterion of constitutionality, and not whether there was a greater or less degree of necessity or utility. The infinite variety, extent, and complexity of national exigencies, necessarily required great latitude of discretion in the selection and application of means; and the authority intrusted to government ought and must be exercised on principles of liberal construction.”
General Washington gave to these arguments a deliberate and profound consideration, which terminated in his conviction that the incorporation of a bank was a measure authorized by the Constitution. The bill for that purpose, accordingly, received his approval, and became a law.
The same question came before the Supreme
Court of the United States, in 1819, in reference to the then existing bank, which had been incorporated in 1816, and upon which the State of Maryland had subsequently imposed a tax; and although the question had twice been settled, so far as a legislative act could settle it, yet it was thought worthy of a renewed discussion in the judicial department. The chief-justice,* however, observed that it could hardly be considered an open one, after the principle had been so early introduced and recognised by many successive legislatures, and had acted upon the judiciary as a law of undoubted obligation.” He, neverthe: less, admitted that it belonged to the Supreme Court alone to make a final decision, and that the question involved a consideration of the Con.. stitution in its most interesting and vital parts.
It was, moreover, admitted that “the government of the United States was one of enumerated powers; but, though limited in its powers, that it was supreme within its sphere of action.” There was nothing, however, in the Constitution which excluded incidental or implied powers. The Articles of Confederation, indeed, gave nothing to the United States but what was expressly granted; but the amendment, to the new Constitution had dropped the word "expressly,” and left the question whether a particular power was granted to depend, as we have seen, on a fair construction of the whole instrument. “No Constitution,” he continued, “ can contain an accurate detail of all the subdivisions of its powers, and of all the means by which they may be carried into execution. Its nature required that only the
great outlines should be marked and its impor. tant objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, were intrusted to the General Government; and a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation vitally depend, must also be intrust ed with ample means for their execution; and, unless the words imperiously require it, we 'ought not to adopt a construction which would impute to the framers of the Constitution, when granting great powers for the public good, the intention of impeding their exercise by withholding a choice of means.'
“The powers given to the government,” he said, “imply the ordinary means of execution, and the government, in all sound reasoning and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the execution of the power. The power of creating a corporation, though appertaining to sovereignty, was held not to be a great, substantive, and independent power, but merely a means by which other objects are accomplished; in like manner, as no seminary of learning is instituted in order to be incorporated, but the corporate charter is conferred to subserve the purposes of education. The power of creating a corporation, indeed, was never used for its own sake, but always for the purpose of effecting something else. It was nothing, therefore, but the ordinary means of attaining some public and useful end. But the Constitution had not left the right of Congress to employ the necessary means for the execution of its powers to general reasoning: it was expressly authorized to employ such means; and 'necessary means,' in the sense of the Constitution, did not import an absolute physical necessity so strong that one thing could not exist without the other, but the term signified any means calculated to produce the end.”
“ The word necessary," it was observed, “admitted of all degrees of comparison. A thing might be necessary, or very necessary, or absolutely and indispensably necessary; to no mind would the same idea be conveyed by these several phrases ;" and the remark was well illustrated by a reference to that article of the Constitution which prohibits a state from laying “imposts or duties on imports or exports, except what may be absolutely necessary for carrying into execution its inspection laws.” It is impossible to compare this clause with that under consideration, without feeling a conviction that the Convention understood itself to change materially the meaning of the word “necessary,” by prefixing to it the word "absolutely" in the one case, and to qualify its signification by dropping it in the other.
The word “necessary,” then, like many others, is used in various senses; and in fixing its construction, the intention, the subject, the con. text, are all to be taken into view. The powers of the General Government were given for the welfare of the nation; they were intended to endure for ages, and to be adapted to the various exigencies of human affairs. To have prescribed the specific means by which the government